[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 06-11673 APRIL 22, 2009
THOMAS K. KAHN
CLERK
________________________
D. C. Docket No. 02-00111-CR-T-17-MAP
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GREGORY G. SCHULTZ,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(April 22, 2009)
Before CARNES, HULL and COX, Circuit Judges.
PER CURIAM:
Gregory G. Schultz, convicted of several white-collar criminal offenses,
challenges an order entered by a federal magistrate judge denying his request to
represent himself at trial. Schultz argues that the magistrate judge lacked authority
to enter that order and, alternatively, that the magistrate judge erred by denying his
request. We affirm in part and dismiss in part for lack of jurisdiction.
I.
A federal grand jury returned a 38-count superseding indictment against
Schultz and three codefendants, charging them with: conspiracy to commit
securities fraud, mail fraud, and wire fraud, in violation of 18 U.S.C. § 371 (Count
1); securities fraud, in violation of 15 U.S.C. § 78j(b) (Counts 2 through 6); the
sale of unregistered securities, in violation of 15 U.S.C. § 77e(a) (Counts 7 through
9); mail fraud, in violation of 18 U.S.C. § 1341 (Counts 10 through 22); conspiracy
to commit money laundering, in violation of 18 U.S.C. § 1956(h) (Count 23);
illegal monetary transactions, in violation of 18 U.S.C. § 1957 (Counts 24 through
31); and money laundering, in violation of 18 U.S.C. § 1956(a)(1)(A)(i) (Counts
32 through 38).
Schultz, a lawyer, represented himself at his first trial. During the fourth
week of the trial, however, Schultz collapsed while cross-examining one of the
government’s witnesses. That night, he was admitted to the hospital, where he
2
remained for several days. In light of the time that it would take for doctors to
diagnose Schultz’s condition, the district court severed Schultz’s case from his
codefendants’ cases and ordered a mistrial.
Schultz’s appointed standby counsel took over preparing his defense for the
retrial. Two weeks before Schultz’s second trial was scheduled to begin, Schultz’s
appointed attorney moved to withdraw from the case, explaining that he had a
conflict of interest because Schultz had recently filed a civil action against him.
The district court referred counsel’s motion to a magistrate judge. The district
court “also refer[red] any motion for self-representation by Defendant Gregory G.
Schultz. No motion has been filed at present but the Court understands the motion
will be filed.”1
The magistrate judge held a hearing at which Schultz invoked his Sixth
Amendment right to represent himself in his upcoming trial, citing Faretta v.
California, 422 U.S. 806, 95 S. Ct. 2525 (1975). Exercising authority under §
636(b)(1)(A), the magistrate judge entered an order denying Schultz’s request for
self-representation because his “recent efforts [were] part of a consistent pattern of
1
Schultz argues that the district court wanted only a report and recommendation, not an
order, from the magistrate judge in this case. However, the record demonstrates that although the
district court requested a report and recommendation regarding Schultz’s counsel’s motion to
withdraw, its referral of Schultz’s motion for self-representation did not specify whether the
magistrate judge was to decide the motion and issue an order, or simply make a report and
recommendation.
3
delay,” he had “persistently tried to obstruct the course of the judicial proceeding”
by intentionally filing non-meritorious motions, and he was engaged in “a
manipulative effort to create potential error” for purposes of appeal. Schultz did
not serve and file an appeal from the magistrate judge’s ruling.
When the district court convened Schultz’s second trial shortly thereafter,
Schultz’s appointed attorney stated: “I would like to reassert for Mr. Schultz his
desire, his motion to represent himself,” to which the district court responded:
“Denied.”
A jury found Schultz guilty on all counts except for Count 6, which the
government agreed to dismiss, and Count 21, of which he was found not guilty.
The court sentenced Schultz to 262 months imprisonment. This is Schultz’s appeal
from the judgment of conviction.
II.
First, Schultz contends that the magistrate judge lacked authority to rule on
his request to represent himself at his trial under Faretta, 422 U.S. at 807. Schultz
argues that, under Faretta and the Sixth Amendment, his right to self-representation
is a fundamental right and that therefore a magistrate judge, as an Article I judge,
has no authority to deny it. Although Schultz failed to raise that argument to the
district court, we review challenges to a magistrate judge’s authority even when the
4
defendant has not objected in the district court. United States v. Desir, 257 F.3d
1233, 1235 (11th Cir. 2001); United States v. Maragh, 189 F.3d 1315, 1318 (11th
Cir. 1999) (citing Glidden Co. v. Zdanok, 370 U.S. 530, 535–36, 82 S. Ct. 1459,
1465 (1962)) (observing that the Supreme Court has treated challenges to a
magistrate judge’s statutory authority as if they were jurisdictional issues).
Because Schultz did not raise his challenge to the magistrate judge’s authority in
the district court, however, we review it only for plain error. United States v.
Freixas, 332 F.3d 1314, 1316 (11th Cir. 2003) (“Freixas's argument concerning the
magistrate judge's authority is advanced for the first time on appeal, and
accordingly we review it only for plain error.”).
To demonstrate plain error, Schultz must show that: “(1) an error occurred;
(2) the error was plain; (3) it affected his substantial rights; and (4) it seriously
affected the fairness of the judicial proceedings.” United States v. Gresham, 325
F.3d 1262, 1265 (11th Cir. 2003). An error is not plain unless it is contrary to
explicit statutory provisions or to on-point precedent in this Court or the Supreme
Court. United States v. Lejarde-Rada, 319 F.3d 1288, 1291 (11th Cir. 2003).
In this case, it was not error at all, much less plain error, to allow a
magistrate judge to decide Schultz’s motion for self-representation. “Magistrate
judges do not . . . exercise the authority of judges appointed under Article III of the
5
United States Constitution; rather, magistrate judges draw their authority entirely
from an exercise of Congressional power under Article I . . . . The jurisdiction and
duties of federal magistrate judges are outlined principally in [28 U.S.C. § 636].”
Thomas v. Whitworth, 136 F.3d 756, 758 (11th Cir. 1998). Turning to the
language of 28 U.S.C. § 636(b)(1)(A), it appears that magistrate judges do have the
authority to make decisions regarding counsel for the defendant. Section §
636(b)(1)(A) states:
Notwithstanding any provision of law to the contrary . . . a judge may
designate a magistrate judge to hear and determine any pretrial matter
pending before the court, except a motion for injunctive relief, for
judgment on the pleadings, for summary judgment, to dismiss or
quash an indictment or information made by the defendant, to
suppress evidence in a criminal case, to dismiss or to permit
maintenance of a class action, to dismiss for failure to state a claim
upon which relief can be granted, and to involuntarily dismiss an
action. A judge of the court may reconsider any pretrial matter under
this subparagraph (A) where it has been shown that the magistrate
judge’s order is clearly erroneous or contrary to law.
28 U.S.C. § 636(b)(1)(A). Thus, magistrate judges are authorized to “hear and
determine any pretrial matter,” and none of the specific exceptions to this rule
include a pretrial motion for self-representation or anything analogous to that type
of motion. A literal reading of the statute therefore supports the district court’s
decision to refer Schultz’s motion for self-representation to a magistrate judge.
Moreover, in addition to the language of the statute, case law also holds that
6
magistrate judges have the authority to decide motions for self-representation. See
Freixas, 332 F.3d at 1319. In Freixas the defendant retained counsel to represent
her and a co-defendant. Because sharing counsel created a potential conflict of
interest, a magistrate judge held a full Garcia2 hearing and concluded that Freixas
was “competent, that she comprehended the charges against her and the maximum
punishment for each, and that she understood both the potential conflict arising
from the sharing of an attorney with an alleged coconspirator and her right to
effective representation of counsel.” Id. at 1317. Accordingly, the magistrate
judge found that Freixas knowingly and voluntarily waived any conflict in her
representation. Id. We upheld the magistrate judge’s authority to make that
determination. Id. at 1319. Notably, the competency and knowledge requirements
for waiving a right to conflict-free representation are substantially the same as the
requirements for waiving right to assistance of counsel entirely, which is a
prerequisite to representing oneself. Godinez v. Moran, 509 U.S. 389, 399–400,
113 S. Ct. 2680 (1993); Faretta, 422 U.S. at 835, 95 S. Ct. at 2541 (stating that a
defendant must only “competently and intelligently” choose self-representation,
just as he must “knowingly and intelligently” forgo his right to a lawyer). Thus,
the determinations made by the magistrate judge in Freixas were quite similar to
2
United States v. Garcia, 517 F.2d 272, 278 (5th Cir. 1975), abrogated on other grounds by
Flanagan v. United States, 465 U.S. 259, 263 n.2, 104 S. Ct. 1051, 1053 n.2 (1984).
7
those that would ordinarily be made by a magistrate judge deciding a motion for
self-representation. Our holding in Freixas supports allowing a magistrate judge to
decide Schultz’s motion.
Finally, other circuits have expressly stated that magistrate judges have the
authority to decide motions for self-representation and substitute counsel. See,
e.g., United States v. Modena, 302 F.3d 626, 630 (6th Cir. 2002) (citing §
636(b)(1)(A) and stating that “[a] magistrate judge is authorized by statute to
determine whether a criminal defendant has effectively waived the right to
counsel”); United States v. Brown, 79 F.3d 1499, 1503 (7th Cir. 1996) (“Title 28
U.S.C. § 636(b)(1)(A) permits district judges to designate non-Article III
magistrate judges for the determination of nondispositive pretrial motions, such as
motions for substitute counsel”).
Against all of this precedent, Schultz cites no case that holds that
determining whether a defendant may waive his right to counsel and represent
himself under the Sixth Amendment and Faretta is beyond the statutory authority
given to magistrate judges under 28 U.S.C. § 636. Schultz’s best argument derives
from the Supreme Court’s opinions in Gomez v. United States, 490 U.S. 858, 109
S. Ct. 2237 (1989), and Peretz v. United States, 501 U.S. 923, 111 S. Ct. 2661
(1991).
8
In Gomez the Court decided that conducting jury selection was beyond the
authority of a magistrate judge. 490 U.S. at 876, 109 S. Ct. at 2248. Most of the
Court’s analysis focused on § 636(b)(3), the residual clause that grants magistrate
judges the power to handle “such additional duties as are not inconsistent with the
Constitution and laws of the United States.” 28 U.S.C. § 636(b)(3). The Court
accepted the argument that allowing an Article I judge to perform the important
function of jury selection, traditionally the province of Article III judges, might
raise a constitutional question. Accordingly, it chose to read the statute so as not to
create that question. Gomez, 490 U.S. at 864, 109 S. Ct. at 2241. The Court also
rebuffed any argument that jury selection was a pretrial matter that could be
handled by a magistrate judge under § 636(b)(1)(A). It found that suggestion
meritless because “subparagraph (A) was plainly intended for less important
matters than voir dire.” Id. at 874 n.28, 109 S. Ct. at 2247 n.28. Two years later,
in Peretz, the Court limited Gomez by holding that if a defendant expressly
consented, the constitutional issue would disappear and a magistrate judge would
have statutory authority to conduct jury selection. Peretz, 501 U.S. at 940, 111 S.
Ct. at 2671.
Thus, Gomez and Peretz provide some oblique support for Schultz’s
position. Those decisions identify at least one stage of a criminal
9
proceeding—jury selection—that is too “critical” for an Article I magistrate judge
to handle without the defendant’s consent. Schultz’s argument is that, by analogy,
deciding a motion for self-representation is equally “critical” and thus must be
considered beyond a magistrate judge’s authority under § 636. However, Schultz
cites no case that extends Gomez and Peretz to issues involving selection of
counsel or the waiver of the right to assistance of counsel. And our own Freixas
decision, issued in 2003, along with the Second Circuit’s Modena decision in 2002,
came well after Gomez and Peretz and did not even hint at the extension Schultz
requests here.
Therefore, under Freixas there was no error, much less plain error, in the
district court’s decision to refer Schultz’s motion for self-representation to a
magistrate judge. See Gresham, 325 F.3d at 1265. Having established that it was
not error for the magistrate judge to exercise authority over Schultz’s motion for
self-representation, the next question is whether we may reach the merits of the
magistrate judge’s decision to deny Schultz’s motion.
III.
“The law is settled that appellate courts are without jurisdiction to hear
appeals directly from federal magistrates.” United States v. Renfro, 620 F.2d 497,
10
500 (5th Cir. 1980).3 In Renfro a magistrate judge acting under § 636(b)(1)(A)
issued a ruling against the defendant on a pretrial discovery motion. Id. at
499–500. We held that we lacked jurisdiction to review that magistrate judge’s
ruling because the defendant had not promptly appealed it to the district court:
In the case at bar, while Renfro did appeal the magistrate’s ruling to
the district court, he did not do so until after trial. This delay deprived
the trial judge of his ability to effectively review the magistrate’s
holding. In essence then, defendant is now appealing a magistrate’s
decision directly to this Court . . . . Accordingly, this part of
defendant’s appeal must be dismissed.
Id. at 500. Under Renfro, if the district court had no opportunity to “effectively
review the magistrate’s holding” at the request of the wronged party, we lack
jurisdiction to hear an appeal of the merits of that holding. Id.
As we have held, we are bound to follow Renfro under our prior panel
precedent rule until this Court sitting en banc or the Supreme Court overrules it.
United States v. Jacqueline Brown, 342 F.3d 1245, 1246 (11th Cir. 2003) (holding
that the prior panel precedent rule applied to Renfro, and reinstating a decision to
deny jurisdiction after it was vacated by the Supreme Court). In Jacqueline Brown,
a magistrate judge entered an order denying Brown’s counsel’s request to
withdraw. Neither Brown nor her counsel “ever raised the issue before the district
3
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we adopted
as binding precedent all decisions of the former Fifth Circuit handed down prior to October 1, 1981.
11
court for review of the magistrate judge’s order.” 299 F.3d 1252, 1259 (11th Cir.
2002), judgment vacated and remanded, 538 U.S. 1010, 123 S.Ct. 1928 (2003),
opinion reinstated on remand, 342 F.3d at 1246. Accordingly, Brown’s appeal
amounted to an appeal directly from the magistrate judge’s ruling, and we lacked
jurisdiction. Id.; see also United States v. Meier Brown, 441 F.3d 1330, 1352
(11th Cir. 2006) (holding that we lacked jurisdiction to review a magistrate judge’s
order quashing a subpoena “because Brown never appealed the ruling to the district
court”). Therefore, in this case, if Schultz failed to appeal to the district court the
magistrate judge’s denial of his motion for self-representation, then we lack
jurisdiction to hear his appeal.
Schultz contends that he did challenge the magistrate judge’s order in the
district court when his attorney asserted that Schultz still desired to represent
himself. Shortly before Schultz’s second trial began, his attorney stated: “I would
like to reassert for Mr. Schultz his desire, his motion to represent himself.” The
district court said “Denied.”
First, we doubt that Schultz’s oral objection, as opposed to a formal appeal
or written objection, was sufficient to preserve his appeal. Certainly, since
December 1, 2005 it would not be sufficient because on that date Federal Rule of
Criminal Procedure 59(a) came into effect. Rule 59(a) requires the defendant to
12
“serve and file objections” to non-dispositive rulings by a magistrate judge within
ten days, and states that “[f]ailure to object in accordance with this rule waives a
party’s right to review.” Fed. R. Crim. P. 59(a) (2005).
In this case, the magistrate judge’s order was issued in late September 2005,
two months before Rule 59(a) came into effect. But even before Rule 59(a), the
legislative history corresponding to § 636(b)(1)(A) suggests that Congress
understood that a proper appeal would be done in writing, not orally. See H.R.
Rep. No. 94-1609, at 10 (1976) (“[O]btaining reconsideration of a magistrate's
order by the judge [] would normally be by motion duly served, filed and noticed.
However, in some districts the local rules now in existence provide merely that the
request for review be in a letter or other written form.”).
Nonetheless, even if we accept the assertion that an oral objection could
have been sufficient to preserve appellate review in this pre-Rule 59(a) case, the
statement made by Schultz’s attorney was still insufficient. The entire exchange in
the district court was this:
Mr. Fernandez: I would like to reassert for Mr. Schultz his desire, his motion
to represent himself.
Court: Denied.
This single statement by Schultz’s counsel, although it was at odds with the
magistrate judge’s ruling, did not even refer to the order, let alone challenge its
13
reasoning— namely, that Schultz was not entitled to represent himself because he
was purposefully obstructing judicial proceedings and manufacturing error for
purposes of appeal. Such a generalized re-assertion of Schultz’s desire to represent
himself was not specific enough or clear enough to permit the district court to
“effectively review” the magistrate judge’s ruling. See Renfro, 620 F.3d at 500
(concluding that appealing a magistrate judge’s pretrial ruling in a post-trial motion
“deprived the trial judge of his ability to effectively review the magistrate’s
holding”).
The conclusion that Schultz’s appeal to the district court was insufficient is
further supported by our case law in the similar context of § 636(b)(1)(B). After a
magistrate judge has issued a report and recommendation under § 636(b)(1)(B), a
party that wishes to preserve its objection must clearly advise the district court and
pinpoint the specific findings that the party disagrees with. In Nettles v.
Wainwright, 677 F.2d 404, 409–10 (5th Cir. Unit B 1982),4 our predecessor Court
4
We adopted as binding precedent all Fifth Circuit decisions handed down prior to October
1, 1981, and all Unit B decisions from any date. Stein v. Reynolds Sec., Inc., 667 F.2d 33, 34 (11th
Cir. 1982). Although the Fifth Circuit has since overruled Nettles in Douglass v. United Services
Automobile Ass’n, 79 F.3d 1315, 1428–29 (5th Cir. 1996) (en banc), that does not change the
binding effect of Nettles in this Circuit because Douglass was decided after October 1, 1981, and
was not a Unit B decision. See Stovall v. City of Cocoa, 117 F.3d 1238, 1241 n.2 (11th Cir. 1997)
(“Of course, we are not bound by the Fifth Circuit’s construction of former Fifth Circuit cases.”);
DeLong Equip. Co. v. Washington Mills Electro Minerals Corp., 997 F.2d 1340, 1342 (11th Cir.
1993) (noting that a Fifth Circuit decision from 1986 that overruled a binding Fifth Circuit decision
from 1975 did not bind the Eleventh Circuit).
14
stated:
It is reasonable to place upon the parties the duty to pinpoint those
portions of the magistrate’s report that the district court must specially
consider. This rule facilitates the opportunity for district judges to
spend more time on matters actually contested and produces a result
compatible with the purposes of the Magistrates Act.
Following Nettles, in Marsden v. Moore, 847 F.2d 1536, 1548 (11th Cir. 1988), we
held that a habeas petitioner did not sufficiently object to a magistrate judge’s
recommendation because his objection was insufficiently clear and precise. Id.
(“Parties filing objections to a magistrate's report and recommendation must
specifically identify those findings objected to. Frivolous, conclusive, or general
objections need not be considered by the district court.”). We require similar
specificity for objections in other contexts as well, such as sentencing objections.
See United States v. Zinn, 321 F.3d 1084, 1087–88 (11th Cir. 2003) (“Whenever a
litigant has a meritorious proposition of law which he is seriously pressing upon
the attention of the trial court, he should raise that point in such clear and simple
language that the trial court may not misunderstand it, and if his point is so
obscurely hinted at that the trial court quite excusably may fail to grasp it, it will
avail naught to disturb the judgment on appeal.”). In sum, Schultz’s one-sentence
reassertion of his motion, without any reference to the magistrate judge’s order or
its findings, was insufficient to convey to the district court the substance of any
15
objection he may have had to the magistrate judge’s order. Accordingly, Schultz
never gave the district court an opportunity to “effectively review” the magistrate
judge’s factual findings and legal conclusion, and we lack jurisdiction to hear it
now. Renfro, 620 F.3d at 500.
Finally, Schultz contends that, even if his objection was insufficient, we
nonetheless have jurisdiction to review the magistrate judge’s order. Schultz
argues that his failure to object should be excused because the magistrate judge
never notified him of his right to appeal to the district court. Schultz argues that
under Nettles, a party’s right to appellate review in this Court cannot be limited
unless the magistrate judge informed the party that objections had to be filed in the
district court within ten days of the magistrate judge’s report and recommendation.
677 F.2d at 408, 410.
However, Nettles involved a magistrate judge’s report and recommendation
issued under § 636(b)(1)(B), not a pretrial order issued under § 636(b)(1)(A). And
although the subparagraphs are similar in some ways, in 2005 subparagraph (B)
carried a ten-day time limit on appeals to the district court, while subparagraph (A)
did not. The reason that the Nettles court adopted the notice requirement was to
give the parties fair warning that § 636(b)(1)(B) required any objection to be filed
within ten days of receiving a copy of the magistrate judge’s report and
16
recommendation. See Nettles, 677 F.2d at 408 (citing United States v. Walters,
638 F.2d 947 (6th Cir. 1981)).
But in September of 2005, before Rule 59(a) came into effect, there was no
ten-day limit under § 636(b)(1)(A), and so no ten-day limit applied to Schultz. See
Jacqueline Brown, 299 F.3d at 1260 n.10 (observing in 2002 two differences
between subparagraphs (A) and (B): that (A), unlike (B), did not require parties to
receive a copy of the magistrate judge’s findings, and that “[n]or, on the other
hand, is there a time limit prescribed in § 636(b)(1)(A)”). Thus, the notice
requirement in Nettles was designed to function under § 636(b)(1)(B) and to
address a time limit that did not apply to Schultz.5
Thus, in this case there is no logical reason to extend Nettles’ notice
requirement to Schultz. Additionally, several other circuits, while agreeing with
Nettles that notice of the time limit is required for dispositive motions, have
concluded that notice is not required for orders like the one in this case. See, e.g.,
Caidor v. Onondaga County, 517 F.3d 601, 604–05 (2d Cir. 2008) (limiting its
notice requirement to dispositive recommendations issued under § 636(b)(1)(B),
and declining to extend such a requirement to nondispositive orders issued under
5
In fact, Schultz’s statement to the district court about reasserting his motion to represent
himself, although insufficient as an appeal of the magistrate judge’s order, did occur within ten days
of the magistrate judge’s ruling.
17
§ 636(b)(1)(A)); United States v. Akinola, 985 F.2d 1105, 1108 (1st Cir. 1993)
(“Moreover, as we pointed out during oral argument, even when such a warning is
required, it is necessary only as part of a Magistrate Judge’s report and
recommendation to the district judge, 28 U.S.C. § 636(b)(1)(B), (C), and not when
the Magistrate Judge issues a non-dispositive order [under § 636(b)(1)(A)].”).
In sum, because Schultz did not appeal the magistrate judge’s order to the
district court, we lack jurisdiction to review the merits of the magistrate judge’s
order. Accordingly, we dismiss this portion of his appeal for lack of jurisdiction.
IV.
Schultz’s last contention is that the district court erred by denying his motion
to dismiss for prosecutorial vindictiveness. Rather than offer any argument on this
issue, however, Schultz cites Fed. R. App. P. 28(i) and 11th Cir. R. 28-1(f) and
seeks to adopt by reference that argument, which was advanced in a codefendant’s
brief filed in a separate direct appeal.
Rule 28(i) does not permit adoption of arguments by reference between
cases unless a motion for adoption is made and granted, which has not occurred in
this case. United States v. Bichsel, 156 F.3d 1148, 1150 n.1 (11th Cir. 1998).
Accordingly, Schultz’s attempt to adopt his codefendant’s argument fails.
18
V.
We conclude that it was not plain error for the magistrate judge to exercise
authority under § 636(b)(1)(A) to enter an order deciding Schultz’s pretrial request
for self-representation. We lack jurisdiction to consider Schultz’s arguments
attacking the merits of the magistrate judge’s order because he did not sufficiently
appeal that order to the district court. Finally, we decline to permit him to
incorporate an argument from another case by reference. Accordingly, we affirm
in part and dismiss in part for lack of jurisdiction.
AFFIRMED IN PART; DISMISSED IN PART.
19